Atlanta prosecutors said they need a special grand jury to hear from U.S. Sen. Lindsey Graham because he may be able to provide insight into the scope of any coordinated effort to influence the results of the 2020 Georgia election.
Fulton County Chief Senior Assistant District Attorney Donald Wakeford made that argument Wednesday during a federal court hearing on a request by Graham to quash his subpoena. Brian Lea, a lawyer for Graham, argued that Graham’s position as a senator protects him from having to appear before the special grand jury in the investigation into whether former President Donald Trump and his allies committed crimes when they tried to overturn his narrow election loss in Georgia.
Graham’s attorneys — including Don McGahn, who served as White House counsel under Trump — successfully moved the issue of whether to quash the subpoena from Fulton County Superior Court to federal court.
U.S. District Judge Leigh Martin May said she hopes to issue a ruling Friday, but it could take her until Monday to decide whether Graham will have to testify.
Fulton County District Attorney Fani Willis opened her investigation early last year, and a special grand jury with subpoena power was empaneled in May at her request. The special grand jury began hearing from witnesses, including Georgia Secretary of State Brad Raffensperger, in June.
Willis indicated early on that she was interested in a telephone conversation between Graham and Raffensperger in November 2020, shortly after the election. Raffensperger said at the time that Graham asked if he had the power to reject certain absentee ballots, and that he interpreted that as a suggestion to throw out legally cast votes.
Willis wrote in a court filing last month that Graham made at least two phone calls to Raffensperger and members of his staff in the weeks after the 2020 general election.
During those conversations, he asked Secretary Raffensperger and his staff to reconsider certain absentee ballots cast in Georgia to explore the possibility of a more favorable result for former President Donald Trump, Willis wrote.
Graham “also referred to allegations of widespread voter fraud in the November 2020 election in Georgia, consistent with public statements by known associates of the Trump campaign,” she wrote.
Lea argued that the U.S. Constitution provides absolute protections against Graham being questioned about legislative action. He also said that “sovereign immunity” protects a senator from being subpoenaed by a state attorney, and that Willis has not shown extraordinary circumstances necessary to compel testimony from a high-ranking official.
Graham had to decide whether to vote to confirm the Georgia votes and has also since proposed election-related legislation, so the phone calls were part of his legislative duties, Lea argued.
Wakeford said that while Willis’ team is interested in the phone calls, it is only a starting point. He also disputed the idea that the phone calls were solely about legislative issues, saying Graham was trying to make some changes to the way Georgia handled absentee ballots before the January 2021 runoff election.
May peppered both sides with questions during the two-hour hearing, but warned lawyers not to read too much into her questioning, explaining that is how she makes sure she understands the issue.
If May doesn’t lift the subpoena entirely, Lea asked her to at least set guidelines for what Graham can be asked to do before the special grand jury. Wakeford asked her not to quash the subpoena and send the case back to Fulton County Superior Court. He said the two sides could negotiate what topics could be covered and any disputes based on federal principles could be brought back to May.
Wakeford’s proposal echoes what May ordered when U.S. Rep. Jody Hice challenged his subpoena to testify before the special grand jury. But May said she would not necessarily do the same in this case, noting that Hice’s lawyers had agreed to those terms.
A group of six former federal prosecutors, including former Massachusetts Gov. Bill Weld, filed a “friend of the court” brief Wednesday in the case opposing Graham’s motion to quash his subpoena. They cite their combined decades of experience and expertise on the issues the senator raises.
“The subpoena reflects a narrowly targeted investigation of unique evidence highly relevant to an ongoing criminal investigation, rather than a fishing expedition or an intrusion into legislative conduct,” their brief states.
May instructed Graham’s lawyers to respond to the letter by Thursday at 12:00 p.m. and told Willis’ team to respond to Graham’s response by Friday at 09.00.